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Breach of Trust

Backstory

The Impeachment of Rod Blagojevich

Not every lawyer gets to prosecute a sitting governor in an impeachment trial. It’s only happened a handful of times in our nation’s history. So being named the House Prosecutor and convicting Governor Rod Blagojevich at the Impeachment Trial before the Illinois Senate has been the highlight of my legal career.

I became the Counsel to the Speaker of the Illinois House of Representatives in November, 2006. I’d done legal work for Speaker Madigan previously. He knew me and trusted me. I have always respected him because he follows the rules and he respects the opinion of his lawyer. I knew it would be a significant job.

But I thought it would be a different job. I had spent thirteen years primarily in private practice. I had tried cases and argued appeals. I had been an administrative law judge who decided cases. And this job would be different than private practice. My job would not be to try cases. As the Speaker’s lawyer, my job is to analyze legislation, interpret the Illinois Constitution, and serve as the House Parliamentarian, making final decisions about parliamentary practice on the floor of the Illinois House. Notice—there is nothing in there about litigating cases.

Enter Rod Blagojevich. In the short time I’ve been on the job, the Governor sued the Speaker twice—the first two times in the history of the state. And then came the impeachment, following the governor’s arrest. So much for not doing litigation!

When Governor Blagojevich was arrested on December 9, 2008, I thought he would resign. And I knew that if he didn’t, there would a loud cry for impeachment hearings. As the impeachment process falls under the domain of the House of Representatives, it became the Speaker’s decision whether, and when, to initiate the process. The Speaker gave the governor some time to make a responsible decision. We waited almost a week—six days—to see if the governor would resign and spare the state from a very difficult few months.

As we all know, the governor didn’t resign. The impeachment process was, let’s say, an interesting exercise. As counsel to the Special Investigative Committee, my job was to make sure the proceedings were handled in a fair and even-handed manner and that the Committee followed the law in reaching its final determination. Easier said than done. The media was everywhere. Partisan politics reared their head on occasion, but luckily not very often. The governor dispatched a lawyer, Eddie Genson, who ably represented the governor. To this day, I respect, admire, and genuinely like Eddie. He did the best he could in a difficult situation. But the evidence against the governor was overwhelming, and the governor did not even bother to appear before the Committee to defend himself. In the end, the Committee unanimously adopted a Final Reportrecommending the impeachment of the governor for a pattern of abuse of power.

The Illinois House voted 116-1 to impeach Governor Blagojevich. Then, because the 95th General Assembly came to an end and the 96th began before the Senate could try the governor, the House of Representatives for the 96th General Assembly took a new vote on impeachment, voting 117-1 to impeach the governor.

Following the governor’s impeachment (twice), the responsibility for the trial fell to the Illinois Senate. There had never been an impeachment trial in the 191 years that Illinois has been a state. Suffice it to say, there was little precedent upon which the Senate could rely. The only help the Constitution gave was to provide that the Chief Justice of the Illinois Supreme would preside over the trial. Other than that, it was a blank slate. But the Senate, under the leadership of a new President, John Cullerton (talk about a baptism by fire), handled the entire process with professionalism and dignity.

I hadn’t planned on being named House Prosecutor. In fact, I was in the process of recommending lawyers to handle that task when I was informed that the role would be mine. I considered it an awesome task. I knew that how this trial would be conducted would be as important as the result. I wanted to make sure that we conducted the prosecution in a fair and professional manner.

Make no mistake. I wanted to win. I believed that the governor was no longer fit to hold office and that he had horribly betrayed the people of this state. I couldn’t believe that a governor, under these circumstances, would not do the honorable thing and resign.

The greatest challenge I faced, other than a lack of time (two weeks to prepare for the trial), was one of form, not substance. I had plenty of substance. But much of it—the criminal case, at least—was in a sworn affidavit signed by an FBI agent. And I couldn’t force an FBI agent to testify. Nor were the witnesses in the federal criminal case available to me. Many of them were under investigation, themselves, and undoubtedly would invoke the Fifth Amendment if I attempted to subpoena them. Moreover, the House had made a decision that I would honor as the House Prosecutor: We would not interfere with the federal investigation and would not call witnesses to the federal case without the consent of the U.S. Attorney, Patrick Fitzgerald. And as much as the U.S. Attorney expressed a willingness to try to give me access to information, he explained to me—and I fully understood—that there was not much information he could give me.

(As a side note: Many people have asked me about my interactions with the U.S. Attorney’s office in this case. Obviously, I can’t provide many details. But I can say that Mr. Fitzgerald and many of his top assistant U.S. attorneys were extremely courteous and respectful and generous with their time. For example, they couldn’t hand over the mountain of tapes of the intercepted conversations involving Governor Blagojevich, but they went to the trouble of reviewing them to see if they could carve out some discrete recordings that they could release without affecting their overall case. They did so—four tapes to be specific—and then filed a motion in federal court seeking the release of those tapes. That entire affair involved a great deal of time, legal research, and manpower on their part and I was grateful for it.)

With the affidavit as my principal source of evidence, but none of the witnesses named (most of them anonymously) in the affidavit available to me, how was I to put on my case? One thought was simply to read the affidavit to the Illinois Senate, which immediately struck me as silly. The senators didn’t need an elongated bedtime story, no matter how tantalizing it might be. Another was to bring House members in to testify about the contents of the affidavit. But that option was only marginally better; the House members would just be testifying about what they read in the affidavit. Ultimately, I realized that one and only witness could make this work: the FBI agent who signed the affidavit, Special Agent Daniel Cain.

So I made another trek to the U.S. attorney’s office and requested that Agent Cain testify. For obvious reasons, Mr. Fitzgerald would not be thrilled to release one of his principal agents to testify in a free-wheeling manner, months before the criminal case would begin. But ultimately, we came to a tentative agreement: Agent Cain would testify but only to the truth of the affidavit he signed. Literally, I would read a paragraph of the affidavit to Agent Cain, and he would testify that the contents of that paragraph were true and accurate to the best of his knowledge.

Getting Agent Cain was a terrific development. Yes, I would have preferred his free-wheeling testimony. But in the end, Special Agent Cain would look each senator in the eye and swear under oath that the affidavit he signed was true.

So the substance was there, but the presentation still worried me. Who would want to listen to me, the prosecutor, simply recite paragraph after paragraph, with Agent Cain saying nothing more than confirming the truth of their contents? I was concerned about the tedium.

But we had one thing going for us. We had the governor’s own words, secretly recorded. And the affidavit, as everyone knows, was chock full of those words. So we put together large poster boards of selected, bombastic Blago quotes from each paragraph. And as I read each paragraph to Agent Cain, we had assistants on each side of him put up a new poster board with a new quote from that particular paragraph of the affidavit. Throw on top of that the presence of the media—about 300 cameras going off, all at once, each time a new board went up. What I feared might be tedious was, in the end, a very dramatic presentation.

The case against the governor was never going to be about flash or sizzle. It was always based on substance. But every prosecutor wants an interesting presentation that holds the jury’s—or in this case the senators’—attention. The use of Agent Cain plus the poster boards—which were plastered on internet news sites all over the world—provided, in my mind, just the right balance.

Meanwhile, Governor Blagojevich had completely boycotted the proceedings. I never expected him to take the witness stand, but I did expect him to send a lawyer, presumably Eddie Genson. The governor chose, instead, to boycott the proceedings altogether and run to New York, taping news segments with major networks and such television shows as “The View.”

I will never understand that decision. In my mind, he made a fool of nobody but himself as he derided the Illinois legislature and me.

And then, on the night before closing arguments, the Senate President made a surprising announcement. The governor, he said, wanted to present a closing argument. It was notable, I thought, that he was only showing up after the evidence had closed, so he couldn’t be asked questions under oath. Some people thought he was coming to resign in a final farewell speech. I admit, it crossed my mind, but it didn’t linger there for very long. Rod Blagojevich wouldn’t admit he was wrong. And he surely wouldn’t resign.

The governor’s closing argument was not much more than his stump speech over the years. Son of an immigrant, kid with a funny last name, wakes up every day thinking about the people of this state…. Most of the senators had heard it many times. It occurred to me that, because of that fact, I might be best served by not presenting a rebuttal to his closing argument. But in the end, I decided to do give a rebuttal for two reasons. One is that millions of people around the world were watching this trial, and many of them had never heard the governor’s stump speech. And he’d delivered it pretty well. The bigger reason is that, for the first time, we had secretly recorded words that directly refuted the nice political words he used in his speech. In his closing argument, the governor talked about jobs for working-class families and health care for indigent children. But his private, secretly-recorded words showed that he wanted to hold up reimbursement for pediatric cancer doctors until the CEO of a hospital contributed $50,000 to his campaign fund. His secretly-recorded words showed that his plan to expand the tollway—which he touted as a jobs bill for the working class—was dependent on political contributions from the road builders.

So we painted that contrast in the rebuttal argument. It seemed a fitting way to end the trial: Governor Blagojevich said all the right things when the camera was on; but when the camera was off, and he thought no one was listening, the real Rod Blagojevich came through. And that real person was not deserving of the office of governor.